Voter Purging: A Legal Way for Republicans to Swing Elections?

The Department of Justice's Voting Section is pressuring 10 states to purge voter rolls before the 2008 election based on statistics that former Voting Section attorneys and other experts say are flawed and do not confirm that those states have more voter registrations than eligible voters, as the department alleges.

Voting Section Chief John Tanner called for the purges in letters sent this spring under an arcane provision in the National Voter Registration Act, better known as the Motor Voter law, whose purpose is to expand voter registration. The identical letters notify states that 10 percent or more of their election jurisdictions have problematic voter rolls. It tells states to report "the subsequent removal from rolls of persons no longer eligible to vote."

"That data does not say what they purport it says," said David Becker, People for the American Way Foundation's senior voting rights counsel and a former Voting Section senior trial attorney, after reviewing the letters and statistics used to call for the purges. "They are saying the data shows the 10 worst voter rolls. They have a lot of explaining to do."

"You are basically seeing them grasping at whatever straws are possible to make their point," said Kim Brace, a consultant who helped the U.S. Election Assistance Commission prepare its 2004 National Voter Registration Act report, which contains the data tables cited by the Voting Section letter to identify the errant states.

The Justice Department would not comment for this report, despite repeated requests.

The 10 states receiving Voting Section purge letters are Iowa, Massachusetts, Mississippi, Nebraska, North Carolina, Rhode Island, South Dakota, Texas, Utah and Vermont. Since 2005, the Section has also sued six other states or cities -- Indiana, Maine, New Jersey, Philadelphia and Pulaski County, Arkansas -- where purging voter rolls was part of the resulting settlement. Only Missouri fought a Voting Section suit, winning in federal court, although that decision has been appealed.

Democratic Party officials in Washington and state capitals were not fully aware of the latest Voting Section effort to winnow voter rolls, but Democratic National Committee officials said it would be studied in a 50-state review of election practices before 2008.

The voter roll purges are part of an unprecedented effort at the Justice Department to eliminate "voter fraud," which, as defined by Republican activists, is an assumption that Democratic political operatives or sympathetic political organizations have filed fake voter registrations or encouraged supporters to vote more than once to win elections. These claims have been investigated by the U.S. Election Assistance Commission (EAC) and academics and found to be without merit. However, the Bush administration's Justice Department, starting under former Attorney General John Ashcroft, has devoted considerable resources to prosecuting "voter fraud." The effort to pressure states to additionally purge voter rolls is a trickle-down effect of these policies.

Voter roll purges, if incorrectly done, can be a factor in determining election outcomes -- particularly in tight races. Unlike most of the "voter fraud" cases cited by GOP activists, where a handful of registrations -- usually in the single digits -- from big voter registration drives are found to be erroneous, purges can affect thousands of voters. In Florida and Missouri in 2000, a total of 100,000 legal voters were incorrectly removed, according to academics and local election officials. In Cleveland in 2004, voter purges were a factor behind long lines and people leaving without voting as poll workers dealt with people who did not know they had been removed from voter lists, various media reported.

AlterNet obtained and analyzed the EAC data used by the Voting Section to identify states with allegedly swollen voter rolls that need purging. Using the methodology cited in Tanner's letters, it found 18 states where more than 10 percent of the jurisdictions -- a total of 2,000 counties, cities and townships -- allegedly had more registered voters than eligible voting-age citizens. It shared those findings with several dozen experts -- from consultants like Brace, who compiled the numbers, to former Voting Section lawyers, to state election officials, to political operatives -- to assess if those states' voter rolls needed purging and whether the Voting Sections actions were partisan.

AlterNet found many of the states targeted by the Voting Section have outdated voter rolls, especially in rural counties, where the registrations of people who have moved, died or been convicted of felonies need to be removed. That is the standard practice of local election officials and required under federal election laws. However, AlterNet found that some states facing Justice Department pressure to purge voters have long been targeted by GOP "vote fraud" activists, especially where concentrations of minority voters have historically elected Democrats -- such as St. Louis, Philadelphia and South Dakota's Indian reservations. One of those Republican activists who is now a Federal Election Commission member, Hans Von Spakovsky, started the department's purge effort in January 2005 when he was a political appointee overseeing the Voting Section's legal agenda, according to former Voting Section attorneys who worked with him then.

Looking toward the 2008 election, it appears the purges could be a new and legal way to accomplish a controversial longstanding Republican Party electoral tactic -- thinning the ranks of likely Democratic voters in states where there may be close races. In numerous elections dating back to the 1960s, the Republican Party has tried to challenge new voter registrations to accomplish this goal, although since 1981 federal courts have blocked many of those challenges as illegal electioneering. In 2004, state Republican Parties tried to challenge 100,000 voters in Ohio, Florida, Nevada, Pennsylvania and Wisconsin, according to the Campaign Legal Center, a nonpartisan, nonprofit, public-interest Washington law firm. Courts and local officials blocked most of those efforts.

Voting rights attorneys say the purges sought by the Justice Department -- in a total of 16 states since 2005 -- could accomplish the same goal as the illegal voter challenge efforts. That is because it is harder to contact lower-income voters to validate their registrations as these voters move more frequently and the means of contact -- mail that is not forwarded -- is not always successful. Historically, this population tends to vote Democratic. All these trends -- 2000's flawed voter purges, the GOP's stymied 2004 voter challenges, the origins of the department's latest voter purge effort, and the apparently specious statistics cited in its letters to 10 states -- have prompted ex-Justice Department attorneys to view the Voting Section's purge project through a partisan lens.

"To me, it's a very clear view of the Republican agenda," said Joe Rich, who resigned as Voting Section Chief in 2005 after 35 years in the Justice Department, speaking of the voter purge initiative. "The GOP agenda is to make it harder to vote. You purge voters. You don't register voters. This is ripe for partisan decision making. You pick the states where you go after Democrats."

"This stuff disenfranchises voters," said Becker. "There are eligible voters who will be removed. There is no evidence that rolls need to be cleaned up to this degree. This will make things more chaotic on Election Day. People will be given provisional ballots that won't get counted."

Political equations

The National Voter Registration Act of 1993 (NVRA) allows the Justice Department to sue states to enforce voter list maintenance laws, or the purging of voter files.

Voter lists, until recently, were maintained mostly at the county level, where election officials periodically remove people who have moved, died or been sent to prison. While the purge process varies from state to state, election offices usually mail letters to voters who haven't cast ballots in the most recent federal election to confirm that their address and voter registration is accurate. The letters are not forwarded. Voters who don't reply are listed as "inactive," but usually can still show up at the next election and vote after showing identification. If that same voter misses two federal elections and does not reply to the mailings, then they can be removed or purged from the voter lists.

Voting rights experts and academics estimate that anywhere from a quarter to one-half of "inactive" voters still have valid voter registrations, but have neither received nor replied to the mailings sent by local election officials. The reasons range from typos and clerical errors in names and addresses, to voters living in nontraditional residences or being away, or mail that may have been improperly delivered. Moreover, low-income people often are transient and hard to reach. A 1991 Yale Law Review article found postal delivery rates for federal tax and census mailings was 15 percent lower in African-American than in white communities.

"It is a misnomer to call them inactive," said Daniel Ivey-Soto, New Mexico's director of elections. "About 18.5 percent of the database is inactive at any time. About half of those people are active voters."

The letters sent this spring to 10 states by Voting Section Chief John Tanner said the Justice Department had examined the most recent federal election statistics -- from the 2004 General Election -- and identified the states with swollen voter rolls.

"We conducted an analysis of each state's total voter registration numbers as a percentage of citizen voting-age population based on reports following the 2004 general election submitted to the Election Assistance Commission," Tanner wrote on April 18, 2007. "According to that report, voter registration actually exceeded the total citizen voting-age population in 10 percent or more of the jurisdictions within your state."

Tanner's letter said the Voting Section was writing to "assess the changes in your voter registration list," progress in creating the statewide voter lists required by the Help America Vote Act (HAVA) and "the subsequent removal from rolls of persons no longer eligible to vote." Internal Department procedures strongly suggest sending notice letters to states and local governments before filing suits.

Ex-Voting Section lawyers questioned the timing of the letters because for several years states have been striving to create statewide voter databases to satisfy HAVA. Cleaning up registration lists is an ongoing part of that task, and the department has sued a half-dozen states for failure to comply with that provision. The Voting Section's 10 purge letters came after that initial litigation, prompting the attorneys to say the letters were veiled threats backed by shoddy analysis.

"This is a real problem," said PFAW's David Becker. "The Department of Justice is the nuclear bomb of voting enforcement. If the DOJ sends a letter, the counties listen, even if they do not have a strong basis to force them to act."

Becker reviewed AlterNet's analysis, which listed all the local jurisdictions that allegedly had more voter registrations than eligible voting-age citizens. The state of Massachusetts was a good example of the Voting Section's "sloppy" analysis, Becker said, because all but two of the localities with voter roll problems were rural, sparsely populated and of little consequence in statewide elections. The other two "problem" jurisdictions -- the neighboring cities of Boston and Brookline -- had more voter registrations than eligible voters only because the inactive voters were included. If half of those inactive registrations are discounted, the cities' rolls look normal and up to date, he said.

"I think it is impossible to claim that this should be a trigger to require a NVRA list maintenance purge," Becker said. "This is a short but sloppy way to figure out and justify something that goes beyond the data. They want more people showing up on Election Day and not finding their names. They want people not voting."

Other experts agreed that the Voting Section was using unreliable statistics.

Kim Brace, a consultant who helped the EAC compile its 2004 NVRA report, said the Section chose a mix of EAC and U.S. Census statistics that was mostly likely to show there were more voter registrations than eligible voting-age adults. The "total voter registration numbers" in Tanner's letter combined active and inactive registrations, Brace said, creating an inflated number for total registrations. In contrast, he said the "citizen voting-age population" was a mid-decade census estimate and a smaller measure.

Brace cautioned against drawing legal conclusions from both these statistical sources, because the voter registration data varied in quality from state to state and because the census figures were estimates, not hard numbers.

"It is the only data available," said Wendy Weiser, deputy director of the Brennan Center at New York University Law School, a public-interest law firm specializing in election litigation, adding it is used by people across the political spectrum. "But if the data is old and bad, then it shouldn't be relied on to challenge people's eligibility."

Preparing for 2008?

An AlterNet analysis of the EAC data used by the department to identify the 10 states that received letters found a total of 18 states with more registered voters than voting-age adults in 10 percent or more of that state's election jurisdictions. That finding raised the question of whether the Voting Section was singling out certain states for voter purges.

A closer examination of the states that didn't get Voting Section letters found some of these states, such as New Hampshire, Idaho and Wisconsin, are exempt from Justice Department oversight because they have Election Day registration. North Dakota also didn't receive a letter, but is exempt from Department oversight because of it has no voter registration system. Alaska, Colorado, Illinois and Michigan also did not receive a letter but had more registered voters than eligible voters in 10 percent or more of their election jurisdictions. That omission did not suggest a pattern benefiting the GOP, as most of these states -- but not Alaska -- lean Democratic.

However, a review of reports and testimony by Republican "vote fraud" activists before and after the 2004 election -- when the department brought most of its suits concerning statewide voter databases and Von Spakovsky started the voter purge initiative -- found many "hot spots" named by Republican activists such as the now-defunct American Center for Voting Rights were targets of Voting Section actions. That would include historic GOP nemeses such as St. Louis and Philadelphia and states with growing Democratic majorities, such as New Jersey.

Other "hot spots" cited by Republican activists, such as Milwaukee, did not fall under Justice Department oversight because Wisconsin has Election Day registration. Another GOP priority was Cleveland, where there have been extensive voter purges since 2000 under the direction of a county elections board that until earlier this year was headed by Ohio's Republican Party chairman. The Justice Department did not act there.

Looking toward 2008, there are a few states that received Voting Section letters where purges could make a difference in a close race, several political consultants said.

South Dakota Sen. Tim Johnson, a Democrat, won in 2002 by 524 votes, and the Pine Ridge Indian Reservation, long a target of Republican voter fraud activists, is among that state's counties with allegedly more registered voters than voting adults, according to the EAC statistics cited in the Voting Section's letter. North Carolina, which also received a letter, is also moving to Election Day registration by 2008, which will increase turnout among lower-income people. A purge could minimize the growth of likely Democratic voters, one consultant speculated. In Maine, another state ordered to purge in a consent decree, Republican Sen. Olympia Snowe faces a tough re-election fight, another consultant noted.

When contacted, Democratic Party officials in Washington and in state capitals generally were surprised to hear about the Department of Justice's letter pressuring states to more aggressively purge their voter files.

Many Democrats were familiar with the GOP's attempts to challenge thousands of voter registrations in battleground states on the eve of the 2004 presidential election. Some also recalled a 2006 effort by the Maryland Republican Party where its members were given a manual with false information about voters' rights and were told to challenge voters and threaten poll workers with jail time.

Last month, the Democratic National Committee announced it would conduct a survey of election administration practices in all 50 states as a way to prepare for the 2008 election. DNC officials contacted for this report said they would examine the impact of the voter purges as part of that inventory of election administration. They declined to discuss the potential political impact of the Justice Department's latest purge effort.

The big question left unanswered by most lawyers, scholars and political professionals contacted for this report was how the Voting Section's purge effort might affect 2008's political terrain. In some states like Florida, the number of registered voters is going down -- not up -- despite population growth and an increasingly politicized national landscape brought on by debate over the war in Iraq and presidential campaigns, according to reports by statehouse bureaus in Florida's major daily newspapers.

"What is weird here is the timing," said a well-connected Washington attorney. "Most states are doing their required purges on time. They are consolidating their statewide lists post-2006 under HAVA. That is in different phases in different states. It looks like they are trying to hit the ones they care about before 2008, and use the other states for cover. There is definitely something going on."

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Steven Rosenfeld is a senior fellow at Alternet.org and co-author of What Happened in Ohio: A Documentary Record of Theft and Fraud in the 2004 Election, with Bob Fitrakis and Harvey Wasserman (The New Press, 2006).